Citation Nr: 1526803
Decision Date: 06/24/15 Archive Date: 06/30/15
DOCKET NO. 13-33 338 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for a gallbladder condition, claimed as gallbladder failure, to include as secondary to gastritis with hiatal hernia.
3. Entitlement to an initial compensable disability rating prior to January 16, 2014, and in excess of 10 percent thereafter for gastritis, to include hiatal hernia.
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
H. M. Walker, Counsel
INTRODUCTION
The Veteran served on active duty from July 1996 to July 2000.
This case comes before the Board of Veterans' Appeals (Board) on appeal of March 2011 and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.
The RO awarded service connection for gastritis with hiatal hernia in a March 2011 rating decision. A noncompensable rating was assigned, effective June 21, 2010. In the November 2014 rating decision, the RO increased the Veteran's rating to 10 percent, effective January 16, 2014. Although this was a partial grant of the benefit sought, the Board notes that the Veteran has indicated continued disagreement with the rating assigned for his gastritis with hiatal hernia and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993).
In March 2015, the Veteran appeared and testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file.
The issue of entitlement to service connection for a gallbladder condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. A bilateral hearing loss disability for VA purposes has not been manifested at any time during the pendency of this claim.
2. Manifestations of the Veteran's gastritis with hiatal hernia during the timeframe on appeal, included complaints of substernal arm pain, dysphagia, heartburn, epigastric pain, sore throat, reflux/regurgitation, nausea, and vomiting, but with no indication of considerable impairment of health.
CONCLUSIONS OF LAW
1. A bilateral hearing loss disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2014).
2. Throughout the entire appeal period, the criteria for a 10 percent rating, but no higher, for gastritis with hiatal hernia have been met. 38 U.S.C.A. §§ 1110, 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.114 Diagnostic Code 7346 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).
Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the Veteran's claims, the VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).
Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless.
A VCAA letter dated in August 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2014); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The August 2010 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
With respect to the Veteran's claim for higher initial rating for his gastritis with hiatal hernia, the Board notes that in cases where a compensation award has been granted and an initial disability rating and effective date have been assigned, the typical claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because service connection for gastritis with hiatal hernia has already been granted, VA's VCAA notice obligations with respect to that issue are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) [where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements].
As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2014) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ explained the issues on appeal during the hearing and generally discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claim. Significantly, the Veteran has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).
Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ( stating that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).
In this case, the Veteran has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of service connection and an increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (indicating that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).
The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claim.
The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2014).
In this case, the Veteran was most recently provided a VA examination in January 2011. The examiner considered the Veteran's complaints, as well as the service treatment records, post-service treatment records, and conducted a physical examination. Based on the foregoing, the examiner concluded that the Veteran did not have a bilateral hearing loss disability for VA purposes. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim.
With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2014).
The RO provided the Veteran appropriate VA examinations-most recently in January 2014. The VA examination reports are thorough and supported by the other treatment evidence of record. The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. The examination report also discussed the impact of the disability on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the January 2014 examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).
As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
Legal Criteria
I. Service Connection
Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Service connection may be granted on a presumptive basis for certain chronic diseases, including sensorineural hearing loss, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2014).
A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
With respect to claims for service connection for hearing loss, the United States Court of Appeals for Veterans Claims (Court) has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Court further opined that 38 C.F.R. § 3.385, discussed below, then operates to establish when a hearing loss disability can be service connected. Id at 159.
For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
In adjudicating these claims, the Board must assess the competency and credibility of the veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses' personal knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007), Layno v. Brown, 6 Vet. App. 465 (1994).
II. Increased Rating
Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2014). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14.
The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).
Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1.
The Veteran's gastritis with hiatal hernia is rated under 38 C.F.R. § 4.114, Diagnostic Code 7346 (2014). In order for a 10 percent rating to be assigned, there must be evidence of two or more of the following: recurrent epigastric distress, dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain. For a 30 percent rating to be assigned, there must also be evidence of persistently recurrent epigastric distress productive of considerable impairment of health. For a 60 percent rating, the Veteran's symptoms must include pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health.
The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995).
Factual Background and Analysis
I. Service Connection
The Veteran contends that he experiences bilateral hearing loss related to noise exposure during service.
VA has conceded that the Veteran was exposed to acoustic trauma during service as his STRs show that he was routinely exposed to noise. Thus, the main question before the Board is whether the Veteran has a current bilateral hearing loss disability. In other words, does the Veteran meet the threshold for a hearing loss disability as described in 38 C.F.R. § 3.385?
A July 1996 enlistment audiological examination showed puretone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
0
0
0
0
In an August 1996 reference audiogram, puretone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
-5
-5
-5
LEFT
0
0
-5
-10
-10
A June 2000 audiological examination at discharge showed puretone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
5
-5
-10
-5
LEFT
5
0
-5
-5
0
The Veteran did not report any hearing loss during service.
In September 2005, the Veteran underwent a private audiological examination, during which puretone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
5
0
10
LEFT
20
20
20
10
15
Speech audiometry revealed speech recognition of 100 percent in each ear. The audiologist opined that his hearing loss was due to his noise exposure.
In October 2005, the Veteran underwent another private audiological examination, during which puretone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
10
0
0
LEFT
15
15
15
5
10
Again, speech audiometry revealed speech recognition of 100 percent in each ear. The audiologist diagnosed normal hearing in the right ear, and mild high frequency sensorineural hearing loss in the left.
In January 2011 the Veteran was afforded a VA audiological examination and puretone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
10
5
0
0
LEFT
10
5
0
5
5
Maryland CNC speech recognition testing showed scores of 96 percent in each ear.
In March 2011, the Veteran's wife submitted a statement indicating that she first noticed the Veteran had a hard time hearing her entitlement beginning in 1998. She also advised that he wears hearing protection at home.
During the Veteran's March 2015 hearing, he testified that his decreased hearing acuity was the same as in the 2011 VA examination.
Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection for bilateral hearing loss.
The Board appreciates the Veteran's contentions and statements from his wife related to his claimed bilateral hearing loss. Even conceding that the Veteran was exposed to significant noise in service, there is no evidence that the Veteran has been diagnosed with bilateral hearing loss disability by VA standards at any point during the timeframe on appeal. In this regard, the puretone thresholds and speech recognition results from the above-described VA examination report shows some decreased hearing acuity, but not significant enough to constitute a bilateral hearing loss disability for VA benefits purposes.
In other words, none of the audiological examinations during the timeframe on appeal revealed auditory thresholds of 40 decibels or greater at any of the prescribed auditory thresholds or speech recognition scores less than 94 percent. Likewise, no single examination shows at least three auditory thresholds of 26 decibels or greater or a threshold in any one of the frequencies of 40 decibels or greater.
With respect to the contentions of the Veteran and his spouse that he currently has bilateral hearing loss disability, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Degmetich v. Brown, 104 F.3d 1328 (1997). As laypersons, the Veteran and his spouse are competent to report that the Veteran experiences difficulty hearing. However, they are not competent to render a diagnosis of a bilateral hearing loss disability that satisfies the regulatory criteria set forth in 38 C.F.R. § 3.385.
Absent competent and reliable evidence of a claimed hearing loss disability, the Board concludes that the claim of entitlement to service connection for bilateral hearing loss disability must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102.
II. Increased Rating
The Veteran seeks an initial compensable rating and a rating in excess of 10 percent beginning January 16, 2014, for gastritis with hiatal hernia. He maintains that his symptoms have been consistent since service and include dysphagia, sore throat, heartburn, reflux/regurgitation, substernal or arm pain, vomiting, and nausea. He advised that he tries to manage his symptoms through medication and diet.
By way of background, the RO awarded service connection for gastritis with hiatal hernia in a March 2011 rating decision. A noncompensable rating was assigned, effective June 21, 2010. In the November 2014 rating decision, the RO increased the Veteran's rating to 10 percent, effective January 16, 2014.
Prior to the appeal period, the Veteran sought emergency room treatment in April 2009 for chest pain, discomfort, indigestion, and weakness. At the time of treatment, the Veteran reported that he has a hiatal hernia and has been off his proton pump inhibitor (PPI). He endorsed difficulty breathing and nausea, but noted his stressors had increased. The emergency room doctor diagnosed gastroesophageal reflux disease (GERD), and specifically ruled out any cardiopulmonary pathology. He was given a "GI cocktail" and his symptoms improved.
In conjunction with his service connection claim, the Veteran underwent a VA examination in January 2011. The Veteran reported a history of hiatal hernia with reflux beginning during service. He currently takes two over-the-counter medications to help control his gastroesophageal reflux and hiatal hernia. He also changed his diet to help alleviate the symptoms. The Veteran advised that milk products and alcohol aggravate his problem, but denied any current dysphasia, pyrosis, or epigastric pain. He also denied nausea and vomiting, but if he does not take his medications, he will begin to have reflux symptoms. The Veteran had no history of hospitalizations, surgery, or trauma of the esophagus. The examiner opined that the Veteran's symptoms do not interfere with his current job or activities of daily living.
Upper gastrointestinal testing revealed a "[n]on-fixed deformity of the duodenal bulb at the level of the pylorus, consistent with healed peptic ulcer disease. No evidence of active ulcers. Intermittent large volume spontaneously occurring and resolving gastroesophageal reflux." The examiner diagnosed gastritis with hiatal hernia, currently controlled with over-the-counter medication. X-ray showed no active disease. The examiner opined that the Veteran's treatment has helped resolve or mitigate his symptoms.
Private treatment record dated in April 2011 shows moderate to severe reflux with choking 2 to 3 times. The Veteran complained of daily, severe reflux symptoms despite use of his medications. He denied dysphagia, abdominal pain, nausea, vomiting, constipation, diarrhea, fever, abdominal distension, blood in stool, odynophagia, or jaundice. He endorsed reflux and heartburn. The treating professional diagnosed hiatal hernia and GERD.
In a September 2011 communication to VA, the Veteran reported acid is present with resultant burning and irritation, despite taking his medications. He occasionally still feels nausea or the urge to vomit-even when medicated. He must sleep propped up so he does not regurgitate/gag, and has inhaled this acid and regurgitation. He endorsed dysphagia and feeling of fullness in his throat, as well as substernal arm and shoulder pain. He related that exercising is difficulty because of his heartburn, and the antacids only reduce his symptoms.
The Veteran stated that he recently visited the emergency room due to chest pains, abdominal discomfort, and shoulder pain. He also advised that he reported problems with reflux and heartburn. When he bends over, acid rolls up his throat causing heart burn and regurgitation. He claims "emotional distress" due to the esophageal cancer risk and regular discomfort and possible heart condition.
The Veteran was afforded another VA examination in January 2014, during which the examiner diagnosed GERD and hiatal hernia. He reported continued use of medication for treatment. His symptoms include heartburn, reflux, regurgitation, and substernal arm/shoulder pain. He advised that his GERD/hiatal hernia caused sleep disturbance once per year and last less than one day. He experiencing periodic nausea and vomiting-both occurring four times a year or more, and last less than one day. The examiner indicated that the Veteran did not have any functional impact due to his GERD/hiatal hernia and it does not impact his ability to work.
Upon careful review of the evidence of record, the Board finds that the Veteran's gastritis with hiatal hernia warrants a 10 percent rating, but no higher, for the entire appeal period. During the entire appeal period, the Veteran's has reported substernal arm pain, dysphagia, sore throat, heartburn, reflux/regurgitation, substernal or arm pain, vomiting, and nausea. In his hearing, he reported that he has had consistent symptoms since service related to this disability. As the Veteran has two or more symptoms associated with the 30 percent rating under Diagnostic Code 7346, the Board finds that the Veteran has met the criteria of an initial 10 percent rating for his gastritis with hiatal hernia.
The Board finds, however, that the Veteran's symptoms are not most analogous to those associated with a 30 percent rating under Diagnostic Code 7346. Although the Veteran has subjectively reported and the medical evidence shows some of the symptomatology associated with a 30 percent rating under Diagnostic Code 7346, his symptoms are not shown to be productive of considerable impairment of health. Neither VA examiner found that the Veteran's gastritis with hiatal hernia has caused him functional impact or impact on his ability to work-nor do his complaints rise to a level of "considerable impairment of health." The Veteran reported that his medications improve his symptoms, but they are still there. He also has to prop himself up while sleeping and be sure to take his medications prior to exercise. These may minimally impact his day-to-day activities, but as for the effect on his health, the Board cannot find the reported symptoms to considerably impact it.
The evidence during the timeframe on appeal reflects consistent treatment for complaints related to his gastritis with hiatal hernia and he has been treated with various forms of treatment, including medication. Although the evidence shows that there have been some instances during the rating period when the Veteran's gastritis with hiatal hernia were not quite as severe as noted in the January 2014 VA examination, there has been consistent treatment for his symptoms with little or no improvement. The Board notes at this juncture that VA will handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344(a). As such, the Board finds that the 10 percent rating for gastritis with hiatal hernia pursuant to Diagnostic Code 7346 is warranted for the entire timeframe on appeal.
The Board has also considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. In doing so, however, the Board notes no other potentially applicable criteria that may be used to rate the Veteran's disability higher than the 10 percent currently rated. Importantly, the Veteran does not have chronic, hypotrophic gastritis with multiple, small eroded or ulcerated areas, and symptoms to warrant a higher rating under Diagnostic Code 7307. Additionally, his symptoms do not warrant a higher rating under Diagnostic Code 7305 (duodenal ulcer) as he does not have recurring episodes of severe symptoms two or three times a year, averaging 10 days in duration or with continuous moderate manifestations.
The Board has considered the Veteran's lay testimony related to his gastritis with hiatal hernia, as well as the lay testimony provided by his spouse, but finds that his symptomatology fits squarely within the guidelines established for the currently-assigned 10 percent disability rating. Absent greater symptoms productive of considerable impairment of health, the preponderance of the evidence is against the award of a disability rating greater than 10 percent.
Ultimately, the Board finds that a 10 percent rating, but no higher, is warranted for the entire appeal period for his gastritis with hiatal hernia.
III. Additional Considerations
The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).
According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2014). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.
With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected gastritis with hiatal hernia is inadequate. A comparison between the level of severity and symptomatology of the Veteran's gastritis with hiatal hernia with the established criteria shows that the rating criteria reasonably describe his disability level and symptomatology with respect to both the symptoms he experiences, and their impact on his daily living. Specifically, the Veteran primarily reports substernal arm pain, dysphagia, sore throat, heartburn, reflux/regurgitation, substernal or arm pain, vomiting, and nausea. He advises that he cannot exercise as much due to his symptoms and he experiences emotional distress worrying about esophageal cancer and heart problems. The current 10 percent rating under Diagnostic Code 7346 is specific for such symptomatology. Thus, the Veteran's current schedular rating is adequate to fully compensate him for his disability on appeal.
In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.
Finally, the Board has considered whether this appeal raises a claim of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation). The Board notes that the Veteran has not contended he is unemployable due to his service-connected gastritis with hiatal hernia. Further, there is no suggestion, either from the Veteran or from the evidence itself, that the service-connected gastritis with hiatal hernia, alone, has a profound effect on his ability to work. Therefore, the Board finds that this appeal does not encompass a TDIU claim at this time.
ORDER
Service connection for bilateral hearing loss is denied.
For the entire appeal period, a 10 percent rating, but no higher, is warranted for his gastritis with hiatal hernia.
REMAND
The Board finds that further evidentiary development is necessary regarding the Veteran's claim of entitlement to service connection for a gallbladder condition.
In February 2005, the Veteran underwent an abdominal ultrasound. The gallbladder was unremarkable and had no stones, sludge, or wall thickening. In a March 2005 treatment note, the Veteran was diagnosed as having a "marginally functioning gallbladder" with a gallbladder ejection fraction of 36 percent (normal is usually considered 35 percent or greater). X-ray of the gallbladder in October 2006 was within normal limits. In the March 2011 statement from the Veteran's spouse, she recalled his diagnosis of failing gallbladder, and continued problems since service. To date, the Veteran has not been afforded a VA examination in conjunction with his gallbladder claim.
The Board finds that the minimal threshold for when a VA examination is warranted has been shown, and the claim should be remanded to obtain an opinion as to the nature and etiology of any current gallbladder condition. See 3.159(c)(4).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for the appropriate VA examination for his claimed gallbladder condition.
The claims file, and any pertinent evidence in electronic format, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed.
After reviewing the file, obtaining a complete history from the Veteran, and conducting a physical examination and all necessary diagnostic testing, the examiner should render an opinion as to whether it is at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran has a gallbladder condition that has been:
a. caused or aggravated by his active military service; or
b. caused or aggravated by his service-connected disabilities (including gastritis and hiatal hernia).
It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
The examiner should provide a complete rationale for any opinion provided.
2. After completion of the above, the AOJ should review the expanded record and determine if the appeal can be granted. If the claim remains denied, the Veteran and his representative (should he obtain one) should be furnished an appropriate supplemental statement of the case. After an opportunity to respond, the case should be returned to the Board for appellate review.
By this remand, the Board intimates no opinion as to any final outcome warranted.
No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs